Senator Franken (Christian Democratic Party; CDA) argued that the technological developments in telecommunications have led to a totally unforeseen amount of data that can be gathered, stored, classified and searched by the police or by intelligence and security services. He raised the question whether the nature of society has changed to such an extent ‘that we have to accept that we live in a “surveillance state” or even a “control state”’. Franken’s own answer seems to be: ‘No!’. He argued that freedom of expression, protection of privacy and confidentiality of telecommunications are acquired rights that may only be limited under strict circumstances. Intelligence services must serve a democratic society and need to be placed under both parliamentary supervision and judicial control. He called for a restructuring of the Parliamentary Committee on the Intelligence and Security Services (ISS Committee). The ISS Committee is composed of the chairpersons of all political parties represented in the Second Chamber of Parliament. Several Dutch experts have stated that these chairpersons are not best equipped for the highly specialized job of supervising the intelligence services. Franken joined these experts by pleading that experience and relevant (legal) knowledge should be the decisive criterion for membership of the ISS Committee. Senator De Vries (Labour Party; PvdA) called for expanding the ISS Committee to a Joint Committee of the First and Second Chamber of Parliament, with permanent staff support. In my view this is a very good suggestion, since such a joint committee would make it possible to incorporate the more extensive legal experience of several members of the Dutch Senate and their less party-bound parliamentary attitude in the ISS Committee.

Senator Franken filed a motion requesting that the government brings the Dutch legislation on data retention into line with the European Convention on Human Rights (ECHR) and the EU standards (particularly the CJEU judgment Digital Rights Ireland). The motion further requests that the government prevents communications by innocent civilians being monitored on a large scale and that it protects civilians from observation that is contrary to the ECHR and other constitutional guarantees. In the motion it is considered, among other things, that the threat of terrorism in itself cannot be a justification for non-targeted, secret and sometimes even illegal large-scale observation and surveillance programmes, as such programmes are incompatible with the principles of necessity and proportionality. The motion was accepted by a large majority on 7 October.

In this debate the Dutch Senate – once again – has demonstrated its value in the field of the protection of fundamental rights. The debate on fundamental rights issues certainly gains depth when held in the Senate (compared to the Second Chamber of Parliament). As far as the composition of the ISS Committee is concerned: just a few months ago the Second Chamber showed no urge towards any restructuring. It remains to be seen whether the calls for change from influential senators like Franken and De Vries can make a difference.

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